Approbate and Reprobate

Any plea not raised before the relevant forum or the appellate authority will be deemed to have been waived and cannot be permitted to be raised directly before the High Court in the exercise of its Constitutional jurisdiction

Waiver is an intentional and conscious relinquishment of a known right

It may be by a positive act of relinquishment or it may be inferred from the conduct of the party

Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the respondent's conduct clearly indicative of abandonment of his right he cannot be said to have deliberately foregone his such right

Waiver and estoppel, in legal parlance, are inter-related and complementary inter se

It is a trite principle of law that a party is bound by its conduct

Where the principle of estoppel is pressed into service on the basis of some admitted/undisputed facts of the case, a party is bound by its pleadings and conduct, hence, at any later stage, it cannot turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority

In the case at hand, besides the principles of waiver and estoppel, the doctrine of approbate and reprobate was also applicable

The maxim qui approbat non-reprobat (one who approbates cannot reprobate) provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter

This doctrine upholds the sanctity of procedural fairness by disallowing inconsistent positions within the same proceedings

Petition was dismissed, in circumstances.

No one could be allowed to approbate and reprobate in the same breath.

When someone was appointed after fulfilling required criteria and appointment was made in prescribed manner then service of such employee could only be terminated after following the law governing procedure for removal from service

If said procedure was not followed, termination order would be ultra vires, ab initio void, in violation of law and without lawful authority

No one could be condemned unheard

No reason had been given for termination orders

When an employee had assumed the charge and performed his duties then he could not be terminated without assigning valid reasons after fulfilling procedure prescribed under the rules

Termination during probationary period was not tenable

Persons who had been appointed allegedly without following the rules or on irregular basis could not be penalized

Appointing authority in such circumstances was to proceed against the officials who were responsible, and not the appointees who had served the department for a long period of time

Statutory bodies were to act in accordance with law

In the present case, contract of employees had been extended and their services had been regularized

Once competent authority had regularized service of employee it created valuable right in favour of that employee which could not be reversed by taking contradictory stances at different times

Appointing department could not approbate and reprobate in the same breath with regard to the same matter

Termination orders passed by the department were in violation of rules envisaged in Workers' Welfare Fund (Employees Service) Rules, 1997

If rules and laws were not followed then termination order would be without lawful authority and constitutional petition would be maintainable

Impugned orders were set aside

Employees were directed to be deemed in service from the date of judgment

No salaries would be paid to the employees as they had not served the department

Constitutional petition was allowed in circumstances.

Fundamental duty of court to protect the integrity of the judicial process and a party could not approbate and reprobate at the same time

When a party took an inconsistent position in the same case or in a prior case, the principle of judicial estoppel should be applied

Judicial estoppel was an equitable doctrine, which precluded a party from taking inconsistent positions before the court and protected the integrity of the judicial system and not of the litigant

Principle of judicial estoppel sought to ensure respect for judicial proceedings and to avoid inconsistency and abuse of process

Under the doctrine of judicial estoppel, court could stop a party from taking up contradictory stances if it was clearly inconsistent with the previous position taken by that party before another Court

Application of judicial estoppel depended upon the facts and circumstances of each case and when a party put forth a position, as a matter of fact in one case and was successful in such an assertion, then that party was estopped from asserting a different position on the same facts in a second case

Party, who was to be estopped in the second case had to be the same party in the earlier case meaning thereby the party is the same in both cases

Issue for which the party was estopped from asserting its facts must have had some nexus in both proceedings and it was imperative that such equitable principle be applied so that a judicial process functions properly and effectively

Litigants must approach the Court in a truthful manner especially if the litigant party was the government

Party could always vigorously assert its position, but could not misrepresent the facts in order to gain some advantage in the process

When a party had formally asserted a certain version of the facts in litigation, he or she could not later change those facts because the initial version no longer suits him or her

For application of the principle of judicial estoppel, the Court must ascertain that a party had asserted a contradictory position before another Court which position was accepted by that Court

Party's later position must be clearly inconsistent with its earlier position, and the courts should inquire whether the party had succeeded in persuading a court to accept its earlier position and it had to be determined whether the party seeking to assert the inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped

Party's change in its factual or legal position threatened to produce inconsistent decisions by the courts and therefore, the doctrine of judicial estoppel was necessary to protect the integrity of the court from the harm caused when a litigant engaged in cynical gamesmanship, achieving success on one position yet arguing a different position in another case to satisfy an exigency of the moment

Allowing a litigant to adopt contradictory positions in different courts would mean that one court was misled or perhaps defrauded.

Under the law, one cannot approbate and reprobate at the same time.

One could not be permitted to approbate and reprobate to the detriment of the opponent.

One could not be allowed to approbate and reprobate and/or otherwise resile from the position having already been taken/pleaded

Petitioner, a civil servant, in the present case, in earlier round of litigation had only resisted her transfer on the plea of 'wedlock policy' therefore, she was not permitted to wriggle out of her stand or otherwise, resist her transfer made by the authorities much less in view of the binding principle of 'wedlock policy' and also in compliance with the observations of the High Court passed in earlier petition.

Withholding of salary on account of past absence from duty for a period of 11 years after rejoining of duty by the petitioner with the approval of the Authority

Authority had not passed any adverse order against the petitioner for the said long absence

Approbate and reprobate

Effect

Payment of salary

Vested right

Contention of the petitioner was that Authority had paid his salary after his rejoining for the period from 14-3-2010 to 31-7-2010, but the salary for remaining period from August, 2010 till the date of his resignation had not been paid to him without any legal justification

Validity

Plea of Authority was that petitioner had remained absent from duty for more than three years, therefore, as per R.33 of Sindh Service Rules, Manual I, petitioner ceased to be government servant

Petitioner joined his duties on 13-3-2010 with the approval of the Authority and salary was also paid to him for this period, therefore, in doing so the Authority waived his right, if any, as such said plea had no force

Authority could not approbate and reprobate about the same matter in same breath

Petitioner was serving in Department till his resignation, no complaint whatsoever about his conduct was available on record, therefore, he had a vested right of payment of salary to him for the period he worked and the reasons given by the authorities in their comments for non-payment of salary of said period were vague, evasive and not sustainable in law

Constitutional petition was allowed in circumstances.

No body can be allowed to approbate and reprobate.

Such conduct of a party would be hit by principles of approbation and reprobation not permissible in legal proceedings.

Law did not allow to approbate and reprobate and giving two contradictory statements would amount to blow hot and cold at the same time, which was not tenable under the law.

Nobody is allowed to approbate and reprobate.

Party cannot be allowed to approbate and reprobate in the same breath, rather he would be bound by his previous stance.

No one can be allowed to reprobate that which he has himself approbated.

Party once having accepted statement of his opponent as true, could not wriggle out from such accepted position on the basis of well known principle of approbate and reprobate

Principles.

Estoppel.

Party could not be allowed to approbate and reprobate in respect of same transaction.

Party could not approbate and reprobate at the same time.

A suitor could not be allowed to approbate and reprobate at the same time.

Party could not say at one time that transaction was valid and thereby obtaining some advantage and at another time say that it was invalid for the purpose of securing further advantage.

No one is allowed to approbate and reprobate.

Having suggested and agreed to a mode of procedure, the party was estopped to resile therefrom and challenge the same.

No person could be allowed to approbate and reprobate in same matter.

Where the appellant had given confessional statement before the Authorities and the same was scrutinized by the Tribunal below, appellant was estopped to wriggle out from his statement on the well-known principle of approbate and reprobate.

Party cannot be permitted to challenge constitutionality and jurisdiction of forum which the party has himself selected for seeking relief under law

Principle of approbate and reprobate is applicable in circumstances.

Person who himself had participated before a forum, could not be allowed to challenge competency of proceedings before said forum on well-known principle of estoppel, waiver and acquiescence

Such person thus, could not be allowed to approbate, reprobate and would not be heard to contend that the forum did not have the jurisdiction.

One of the parties to the suit contended that arbitrator was not competent to pass an award and Court had illegally made the award rule of the Court

Contention was repelled because party could not approbate or reprobate.

No body should be allowed to approbate and reprobate.

Nobody is allowed to approbate and reprobate.

Nobody is allowed to approbate and reprobate.

Approbate and Reprobate Plaintiffs relying upon allotment of land procured by defendant, their attorney, denying his status as attorney when he made transactions of land in question, on their behalf

Plaintiffs could not be allowed to approbate and reprobate at the same time.

Approbate and Reprobate Subsequent purchasers having purchased entire land in question, could not turn round to say afterwards that alienor was owner of only half the land

Such plea having been taken by subsequent purchasers for the first time in the High Court

Even otherwise subsequent purchasers could not be allowed to approbate and reprobate.

Approbate and Reprobate No person can be allowed to reprobate that which he had himself approbated and muchless can he be allowed to do so with aid of discretionary jurisdiction of Court.

Person doing wrong to other could not be allowed to appropriate the benefits accruing from his own wrong doing.

Vendees subsequently could not turn round and take different position to challenge title of their vendors.

No person can be allowed to approbate and reprobate in the same breath by admitting tenancy on one hand and setting up plea of non-maintainability of application for ejectment on the other hand.

Approbate and Reprobate Where consistent stand of respondent Authority was that land in question, could not be allotted to any one in view of public interest, such Authority could not be allowed to change its stand in an abrupt -and arbitrary manner and allot the same to a stranger without notice, to persons likely to be affected by such action.

Plea of approbate and reprobate, which necessarily entailed reappraisal of evidence, could not be raised in Constitutional petition, but same if available, could be raised before Tribunal of competent jurisdiction.

Approbate and Reprobate Any point specifically given up before High Court cannot be raised in Supreme Court.

Tenant, however, in order to avoid such agreement, indulged in protracted litigation and thus continued postponing such increase in rent

Tenant's conduct showed height of inequity on his part

Such conduct would amount to approbation and reprobation on part of tenant, which in law and equity, he could not be permitted to do.

[Landlord and tenant].

Defendants, on Arbitrator's claim for a specified amount of fee, entered into negotiations, with him for fixation of appropriate fee which in fact was fixed, out of which half was to be paid by the defendants

Defendants, after submission of Award by the Arbitrator, pleaded misconduct on part of Arbitrator for having demanded specified amount, as fee

Justification

­Defendants being the appointing authority and a party to arbitration proceedings were themselves guilty of misconduct by holding meetings with Arbitrator behind the back of the plaintiff and thus were estopped from approbating their objection at one time and reprobating the same at another time or taking up pleas inconsistent with their own conduct.

[Arbitration].

Principle-Conduct of parties-A party cannot both approbate and reprobate and at same time cannot blow hot and cold-Party cannot say at one time the transaction is valid and thereby obtain some advantage and at another say it is void for the purpose of securing further advantage-Where a party persuaded a Tribunal to adopt a particular course for determining the issue in question and accepted benefit of such arrangement he cannot be allowed to repudiate when it comes to liabilities and obligations thereunder.

Party inviting Court to adopt a particular course of action-Cannot be permitted to challenge such action as without jurisdiction.-[Jurisdiction]

Business-Malaya-Enemy occupation-Payment of debts in depreciated currency-Ordinance scaling down payments and reviving debts in part-Additional amounts received under Ordinance-Whether income-Additional amounts paid-Whether business expenditure

Apportionment between capital and interest.